Citation Nr: 21041256 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-45 251 DATE: July 8, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include post-traumatic stress disorder (PTSD), depression, anxiety, and chronic sleep impairment with symptoms of insomnia, is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to June 1977. The Veteran also had additional service with the Army National Guard. These matters come to the Board of Veterans' Appeals (Board) on appeal from a November 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board recharacterized the issue as entitlement to service connection for an acquired psychiatric disability, to include sleep impairment and insomnia symptoms, and remanded the issue for further development. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's reported symptoms and other information of record.). The appeal is returned to the Board for further appellate review. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depression, anxiety, and chronic sleep impairment with symptoms of insomnia, is remanded The Veteran contends that during his military service he had a gun pulled on him by a fellow soldier and the soldier pulled the trigger twice, but the gun misfired; he thinks about this incident and it causes him difficulty with sleeping. The Veteran also states that he has constant ringing in his ears and that he wakes up between 2:00am and 3:00am with ringing and he cannot get back to sleep. Therefore, he maintains that his sleep disorder is related to his service-connected tinnitus. Medical Opinion When the Board has remanded a claim to obtain a VA medical opinion that opinion must be adequate in order to comply with the remand. Once VA has provided a VA examination, it is required to provide an adequate one, regardless of whether it was legally obligated to provide an examination in the first place. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The May 2019 Board remand directed the examiner to consider diagnoses of any acquired psychiatric disorders and did not limit the examination to PTSD only. As such, the Veteran should have been afforded a mental disorders examination that considered diagnoses of all acquired psychiatric disorders. On remand, in January 2020, a VA examiner determined that the Veteran had symptoms of depressed mood, anxiety, and chronic sleep impairment, but only indicated a diagnosis of PTSD. It is not altogether clear whether the VA examiner considered other diagnoses of any acquired psychiatric disability. Also, the examiner's finding lack supporting rationale for the determination of a diagnosis. The examiner also determined that the Veteran did not meet the criteria for insomnia disorder, and rather related sleep issues to PTSD, but without sufficient rationale for such critical finding, including whether the Veteran's lay statements on insomnia were considered. Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also notes that a disability for purposes of establishing service connection is an injury or disease that results in functional impairment, and "the disability itself need not be diagnosed." See Saunders v Wilkie, 886 F.3d 1356, 1362 (2018) (finding that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability."). Although the January 2020 examiner determined the Veteran did not have a diagnosis of insomnia disorder, the examiner was required to discuss whether the Veteran's chronic sleep impairment symptoms were productive of functional impairment. As the examiner failed to do so, the opinion is further inadequate. In addition, on remand, a December 2019 VA physician provided a negative medical opinion concerning his sleep problems. The examiner opined that the sleep disorder is less likely than not proximately due to or the result of the Veteran's service-connected tinnitus. The VA physician apparently rejected the Veteran's competent statements on a history of tinnitus as contributing to insomnia, because they were not documented in corroborating medical records. The Board finds the opinion improperly discounted the lay evidence absent contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (noting that Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). See also Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (finding that where a veteran has provided lay testimony of an in-service injury or event, and that lay testimony has not been rejected, an examiner cannot ignore that lay evidence and base his or her opinion that there is no relationship to service on the absence of in-service corroborating medical records). The examiner also failed to consider whether the Veteran's sleep disorder is aggravated by his service-connected tinnitus. A secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). A medical opinion is inadequate when it does not consider all raised theories of entitlement. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). Another VA examination and medical nexus opinion is warranted. Outstanding Medical Records The Board's May 2019 remand also directed the AOJ to assist the Veteran in obtaining any outstanding VA medical records and private records. In this instance, the RO issued a request to the Veteran in June 2019, for information regarding VA and private medical providers and a request for authorization to disclose information (VA Form 21-4142a). The Veteran submitted VA Form 21-4142a in July 2019, but he did not include any information regarding medical providers. However, the RO did not make a follow-up request for information regarding VA and private medical providers. By not continuing to pursue any relevant Federal records, and by not sending a follow-up request regarding any relevant private records, the RO did not fulfill the duty to assist. The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for his mental health and sleep problems. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. The Veteran must be provided a request for such information as well as a follow-up request. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. 2. Obtain VA treatment records, if any. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. After associating any additional medical records with the claims file, the Veteran should be scheduled for an examination with an appropriate VA clinician, different from a prior VA examiner, for the issuance of a medical opinion as to the nature and etiology of his acquired psychiatric disorder. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The clinician should thoroughly review the Veteran's entire claims file, including a copy of this Remand. The examiner should provide the following: (a) Identify all diagnosed mental health disabilities. (b) With respect to each diagnosed psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed disorder: (1) is related to an event, injury or disease incurred in service; (2) was caused by the service-connected tinnitus or bilateral hearing loss; or (3) was aggravated by the service-connected tinnitus or bilateral hearing loss. (Continued on the next page) A complete rationale for any opinion expressed must be provided. The examiner must reconcile any competent lay statements by the Veteran on the history of his psychiatric and sleep problems during and since service. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. B. CHATTERJEE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.