Citation Nr: 22016222 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-46 923 DATE: March 21, 2022 REMANDED The issue of service connection for posttraumatic stress disorder (PTSD) is remanded. The issue of service connection for insomnia, to include as secondary to posttraumatic stress disorder (PTSD) is remanded. The issue of service connection for traumatic brain injury (TBI) is remanded. The issue of service connection for degenerative arthritis of the cervical spine, to include as secondary to service-connected disability is remanded. REASONS FOR REMAND The Veteran had active duty in the United States Air Force from May 1992 to July 1999. This matter comes before the Board of Veterans' Appeals (Board) from a June 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran submitted a Notice of Disagreement (NOD) in June 2016 and a Statement of the Case (SOC) was issued in August 2017. The Veteran perfected an appeal by submitting a timely VA Form 9 in August 2017. 1. The issue of service connection for posttraumatic stress disorder (PTSD) In March 2022, the Veteran was diagnosed as having PTSD secondary to military sexual trauma (MST). The Veteran reported that he was "drugged by another solider" and that he was not sure "if anything (sexually) happened when he was drugged." In the alternative, the Veteran contends that his PTSD was caused by his active service, specifically when he was stationed in Guyana or in Jordan and contends that he has had continuous symptoms since discharge, although VA Medical Center treatment records show that he consistently denied PTSD symptoms and has had negative PTSD screens until September 2014. VA's duty to assist includes, however, obtaining a medical examination or opinion when such is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). An examination or medical opinion is necessary if the evidence of record (1) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (2) establishes that the claimant suffered an event, injury, or disease in service; or has a presumptive disease or symptoms of such a disease manifesting during an applicable presumptive period; and (3) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service; but (4) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. Id.; see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). With respect to the claim of service connection for PTSD, the statutory duty to assist has been triggered, as the Veteran contended that his current PTSD is causally related MST. He has not yet been afforded an examination for this claim. The Board thus finds that the Veteran should be afforded an appropriate examination with respect to his service connection claims for PTSD to include as secondary to possible MST. 2. The issue of service connection for insomnia, to include as secondary to posttraumatic stress disorder (PTSD) The claim of entitlement to insomnia is inextricably intertwined with the remanded claim of service connection for PTSD as the decision will affect the claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (noting that two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Thus, consideration of the appeal regarding entitlement to insomnia will be deferred. 3. The issue of service connection for traumatic brain injury (TBI) VA Medical Center treatment records show that the Veteran was suspected of having TBI with loss of consciousness in December 2016, although his symptoms seemed more consistent with Ganser's syndrome in December 2015. The Veteran contends that he has had a head injury in 1991 and 1996. Although the Veteran contends that he injured his head at an Army Base in 1991, the Board observes that the Veteran's active service in the Air Force began in May 1992 and that in a July 2014 VA examination, the Veteran reported falling in 1992 during advanced training. The Veteran is currently service-connected for his thoracolumbar back and service treatment records show that the Veteran's was tackled playing football and landed on a rock in October 1992. Service treatment records also show that the Veteran was "hit in face by arm and chair" in September 1996. As discussed above, VA's duty to assist includes obtaining a medical examination or opinion when such is necessary to decide on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon, 20 Vet. App. at 79. With respect to the claim of service connection for TBI, the statutory duty to assist has been triggered, as the Veteran contended that his current TBI is causally related to his fall in-service. The Board notes that the Veteran's service treatment records show two separate incidents involving his head as discussed above. He has not yet been afforded an examination for this claim and thus finds that the Veteran should be afforded an appropriate examination with respect to his service connection claims for TBI. 4. The issue of service connection for degenerative arthritis of the cervical spine, to include as secondary to service-connected disability The Veteran contends that his degenerative arthritis of the cervical spine ("neck disability") is caused by service, to include as secondary to his service-connected lumbar spine disability. In March 2016, the Veteran was afforded a VA examination for his degenerative arthritis of the cervical spine. The examiner opined that it was less likely than not that the Veteran's neck disability was caused by a service-connected disability. As rationale the examiner stated that there was "no correlation between arthritis of the cervical spine being caused secondarily by a lumbar spine condition." The examiner did not opine whether the Veteran's neck disability was aggravated by the Veteran's service-connected lumbar spine disability or any other service-connected disability. The examiner also did not opine whether the Veteran's neck disability was directly caused by service, such as his injury playing football in October 1992 or getting hit in the face in September 1996. Secondary service connection is a two-part issue that involves causation and/or aggravation. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding that secondary service connection is a two-part issue that involves causation and/or aggravation); 38 C.F.R. § 3.310 (providing that "[a]ny increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected"). The Court of Appeals for Veterans Claims (Court) had held that a medical opinion that focuses solely on causation is inadequate to address whether a service-connected disability aggravated another condition. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Thus, because the VA examiner did not address the second element of secondary service connection, the March 2016 VA examination and opinion is inadequate. Accordingly, it necessary to remand the Veteran's claim of service connection for sleep apnea for additional development. This is so because once VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board also adds that as the examiner did not address the Veteran's contentions, the examination is also inadequate in that regard. See Moore v. Derwinski, 1 Vet. App. 401, 404 (1991) ("the Board must include in its decisions 'the precise basis for that decision ... [and] the Board's response to the various arguments advanced by the claimant.'" (alterations in original) (quoting Gilbert v. Derwinski, 1 Vet. App. 49 (1990)). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of the Veteran's PTSD or any other psychiatric disorder. The examiner should review the virtual file. The examiner is to address whether it is at least as likely as not (50 percent or greater probability) that PTSD or any other psychiatric disorder manifested during or is otherwise related to the Veteran's period of active service, to include military sexual trauma. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered, to include prior diagnosis of PTSD. If an opinion cannot be given without resorting to speculation, the clinician should explain why and 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), the record (additional facts are required), or the clinician (does not have the knowledge or training). 2. Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of the Veteran's insomnia. The examiner should review the virtual file. The examiner is to address whether it is at least as likely as not (50 percent or greater probability) that insomnia manifested during or is otherwise related to the Veteran's period of active service or service-connected disabilities. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered, to include prior diagnosis of insomnia. If an opinion cannot be given without resorting to speculation, the clinician should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the clinician. 3. Schedule the Veteran for an examination by a VA clinician to determine the nature and etiology of the Veteran's TBI. The examiner should review the virtual file. The examiner is to address the following: (a) State whether the Veteran sustained a TBI and if so whether residuals of a TBI is currently present. If the examiner disagrees with a diagnosis already established in the medical records, he/she should so state and explain why. (b) Whether it is at least as likely as not (50 percent or greater probability) that residuals of a TBI manifested during or is otherwise related to the Veteran's period of active service. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered, to include prior diagnosis of TBI. If an opinion cannot be given without resorting to speculation, the clinician should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the clinician. 4. Obtain an addendum VA medical opinion regarding the Veteran's degenerative arthritis of the cervical spine. Specifically, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that degenerative arthritis of the cervical spine was caused by service or a service-connected disability. The examiner is advised that aggravation means any increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. A rationale for all opinions is to be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge, the record, or the examiner. The need for another examination is left to the discretion of the examiner offering the addendum opinion. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H.S. Yun, 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.