Citation Nr: 22010347 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 13-19 259 DATE: February 23, 2022 REMANDED Entitlement to a rating greater than 50 percent prior to October 29, 2016, for major depressive disorder with anxiety disorder with features of generalized anxiety disorder (GAD) and posttraumatic stress disorder (PTSD) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1990 to July 2001. The Department of Veterans Affairs (VA) is grateful for her service. Entitlement to a rating greater than 50 percent prior to October 29, 2016, for major depressive disorder with anxiety disorder with features of GAD and PTSD is remanded. In an October 2019 decision, the Board of Veterans' Appeals (Board) denied a higher rating than the 50 percent assigned for major depressive disorder and anxiety disorder with features of GAD and PTSD. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court), and by an April 2021 Memorandum Decision the Court set aside the Board's decision, based on the Court's finding that the Board had provided inadequate reasons and bases for its decision. The Court remanded the case to the Board for readjudication. In this case, medical examiners have not meticulously addressed every alleged symptom and its impact over the entire claim period. Specifically, the record is relatively sparse as to the nature of these reported symptoms of passive suicidal ideation and hallucinations, and their discrete impacts on the Veteran's functioning. The Board cannot adequately address the discrete impacts of these reported symptoms absent adequate evidence. The VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). For these reasons, in June 2021, the Board remanded the claim for an examination addressing the discrete impacts of the Veteran's reported auditory and visual hallucinations and suicidal ideation. Pursuant to the Board's previous remand, an examination was obtained in October 2021, and an addendum to that examination was obtained in December 2021 to address the discrete impacts of these symptoms. The examiner provided the following response: It does not appear that the Veteran's functioning was impaired by these symptoms. Veteran worked as a teacher. Teaching requires extreme focus and mindfulness to be present in class. Veteran was able to maintain employment thus indicating that she did not have functional impairment during this time period. Due to inconsistent reporting, it cannot be assumed that the Veteran ever truly had hallucinations. Veteran did not report any history of hallucinations in this examination so it can be assumed that she has in fact not had hallucinations previously. The Board finds these opinions by the examiner to be conclusory and not adequately based on the evidence in this case, and hence not of sufficient probity to be relied upon in the Board's adjudication. A medical opinion is inadequate if it relies on an inaccurate factual basis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Specifically, the idea that a teacher could not have remained employed while suffering from symptoms such as suicidal ideation or hallucinations is not a rational conclusion. Hence, the examiner's opinion based on the supposition that a teacher remaining employed could not have been so impaired because she would not have retained employment is insufficient to support the opinion. The examiner's assumption that the Veteran did not have hallucinations because she did not volunteer that symptom is similarly flawed. Hence, examination by a different examiner is warranted, so as to avoid pre-judgment by an examiner with a demonstrated propensity for jumping to conclusions. In a January 2022 statement, the Veteran explained that the examiner failed to ask her about hallucinations, thus supporting the gap in evidence relied upon. The Veteran also took issue with the RO's conclusion in December 2021 supplemental statement of the case (SSOC) that there was a "considerable gap in care" as reflecting less severe illness. The Veteran noted that she had reported in a September 2021 statement that there was a gap in care "not due to improvement in symptoms but because my provider left the VA and it was overwhelming for me to start with someone new." These issues should be considered by the examiner upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide a clear statement of her history of hallucinations over the claim period. The Veteran should be afforded an appropriate time to respond. Any reply received should be associated with the claims file and made available to the examiner for the records-based examination requested in instruction 2. 2. Thereafter, obtain a records-based psychological examination to address retrospectively the impacts of the Veteran's passive suicidal ideation, and, separately, the impacts of the Veteran's inconsistently reported auditory and visual hallucinations, on her social functioning and her work or occupational functioning during the claim period between June 2011 and October 2016. This must be by an examiner other than the examiner who conducted the October 2021 examination and provided the December 2021 examination addendum. The examiner should observe that the Veteran's auditory hallucinations were reported in her statements in January 2011 and May 2012, and her visual hallucinations were reported in a statement in December 2012 (reporting seeing bugs on walls), while the examiner should also note that Veteran denied auditory and visual hallucinations upon prior examination, but she has subsequently objected in a January 2022 statement that she was not asked about hallucinations. The examiner should review the Veteran's submitted January 2022 statement as well as any subsequently received statement from the Veteran detailing her past history of hallucinations. The examiner should be advised that the prior records-based examination in October 2021 and addendum in December 2021 were inadequate because the examiner drew substantially unfounded conclusions on which she based her opinions, including that the Veteran could not have worked as a teacher had she been suffering from suicidal ideation, and that "[d]ue to inconsistent reporting, it cannot be assumed that the Veteran ever truly had hallucinations." The claims file should be thoroughly reviewed for this examination. If any additional tests or studies are necessary, these should be obtained; and if an in-person examination is found to be necessary to address these retrospective questions, this should also be obtained. The examiner should provide complete explanations, supported by evidence and medical knowledge, for the examiner's opinions. (Continued next page) 3. Thereafter, readjudicate the appealed claim. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Schechter 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.