Citation Nr: 22018262 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 19-21 339 DATE: MARCH 28, 2022 REMAND MARCH 28, 2022 Entitlement to service connection for an acquired psychiatric disorder to include a speech impediment (stutter), depression, and anxiety, and claimed as post-traumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty from June 1974 to October 1974 and from January 2002 to August 2002. This appeal is before the Board of Veterans' Appeals (Board) from a July 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO) and in November 2021, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) and a transcript of that hearing is associated with the claims file. To allow for proper legal analysis the Board finds that medical guidance is necessary to determine whether the Veteran's stutter is a developmental "disease" or "defect." Additionally, the Veteran's claim has been recharacterized to encompass all of his acquired psychiatric disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (providing that "a single claim can encompass more than one condition"). Lastly, for the sake of clarity, the Board will include a recitation of the pertinent evidence of record. Turning to the evidence of record, a private medical record from April 1980 indicated he had a speech impairment, which the Veteran reported began in 1974. The service treatment records (STRs) indicate a July 1982 report of medical history indicated he "stutters frequently." January 1987 and 1992 reports of medical history noted the Veteran's stutter. An October 1999 report of medical examination contained a check mark in box 42 for "Psychiatric" and the report later noted, "stutters." An August 2002 report of medical examination contained a check mark in box 40 for "Psychiatric" and the report later noted "stuttering prior to deployment." In May and June 2004, VA records document the Veteran's stutter. In September 2005, VA records indicate he had a "marked stutter" and was diagnosed with depression. In April 2006, VA records indicate he was diagnosed with Axis 1 depressive disorder. A November 2006 VA record indicates he was diagnosed with Axis 1 Depression and anxiety and Axis 3 severe stutter. In February 2007, VA treatment records indicate he began speech pathology to correct his stutter; however, the records do not include any opinion or statements regarding its etiology. In July 2016, he underwent a VA PTSD examination report which included a review of the claims file, a recitation of complaints and medical history, and psychiatric examination results. The examiner noted he did not meet the DSM-IV criteria for PTSD but did meet the criteria for a depressive disorder with anxious distress. The examiner ultimately determined his depressive disorder with anxious distress was less likely than not the result of active service; specifically opining: The Veteran reported episodes of depressed mood, feelings of hopelessness, and worthlessness. He also reported ongoing problems with excessive restlessness and feeling tense. There is no evidence of treatment for this condition until 2005, 3 years after his discharge from the military. His depressive condition is related to ongoing financial and social/interpersonal stressors. In August 2017, VA psychiatry records from Dr. K characterize his stuttering as "developmental stuttering." In July 2019, Dr. K. submitted a medical opinion to the Board that determined his stutter was aggravated during his active service; specifically, the opinion states in pertinent parts: PT. reported maltreatment during childhood and while it is likely that his problems with severe anxiety and communication began prior to military service, it is more likely than not that these problems were exacerbated during his many years of military service. I also concur with the speech therapists' assessment that his anxiety problems through his life have worsened his stuttering. Adverse childhood experiences have been linked to poor neurodevelopmental outcomes... While service in Germany, there were serious family problems at home... The Veteran recalls being very withdrawn and isolated during his military career, with significant anxiety symptoms and coping difficulties. It my professional opinion, it is during this period of significant personal stress... the PT's communication problems and speech difficulties were exacerbated; it is more likely than not that his significant stuttering problem and any premorbid anxieties were worsened. During the Veteran's November 2021 Board hearing, the Veteran alleged he received poor treatment in-service, which caused him to isolate himself resulting in his stuttering worsening during his period of active service. The evidence of record contains a litany of VA treatment records not recited above that document the presence of the Veteran's stutter; however, none of the records include a medical nexus opinion. After a review of the claims file the Board finds a remand for further development is warranted prior to adjudication of the Veteran's claim. In this case, it appears his stutter his not congenital in nature since the consensus of the evidence suggests it developed around age 19-20. However, no medical opinion has been rendered regarding whether his stutter is a developmental defect or disease. While the Board acknowledges the VA records characterized his stutter as "developmental," the records are unclear if this is a formal diagnosis or simply a finding or theory. In that regard, the only instance in which a developmental "defect" may be service connected is if there is evidence of the development of an additional disability due to "aggravation" of the developmental defect by a "superimposed" disease or injury during service. If the claimed disorder is a "disease," service connection may only be granted if the evidence shows it is as likely as not that the developmental "disease" was "aggravated" during a period of active service. In differentiating the two categories, VA's Office of General Counsel has stated that, when viewed in the context of 38 C.F.R. § 3.303(c), the term "defects" would be definable "as structural or inherent abnormalities or conditions which are more or less stationary in nature." VAOPGCPREC 82-90. In contrast, a "disease" is referred to as a condition considered capable of improving or deteriorating. Id. Service connection is not available for developmental defects, but service connection may be awarded for disease or injury that is superimposed upon the developmental defect during service. Quirine v. Shinseki, 22 Vet. App. 390, 394 (2009); Monroe v. Brown, 4 Vet. App. 513, 515 (1993); VAOPGCPREC 82-90. While the Board acknowledges the 2019 Dr. K. medical opinion that his stutter was aggravated by his service, the opinion is inadequate for VA ratings purposes. Specifically, the opinion considered the time period after his active-duty service as also contributing to his worsening stutter. For an opinion regarding whether a pre-existing disability was aggravated by active service, the only period of consideration is the increase in the disability during active service. See 38 C.F.R. § 3.306(a). Indeed, by including a post-service time period, the opinion takes into consideration the possibility that the worsening occurring was simply the natural progression of the disease which is the opposite intent of aggravation. Id. As such, the opinion provides little probative value. Therefore, a VA opinion is required to determine whether his stutter is a developmental defect or disease and/or if his stutter was subjected to a superimposed injury or disease. Accordingly, this case must be remanded to ensure a complete record upon which to decide the claims on appeal. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matter is remanded for the following actions: 1. Acquire VA addendum opinions from an appropriate psychiatric examiner to answer the below questions. The examiner is ordered to review the evidence outlined in this decision and the claims file prior to answering the following questions: Determine whether the Veteran's acquired psychiatric disorder to include a speech impediment (stutter) is a developmental defect or disease. Note 1: For purposes of VA compensation, a developmental defect is defined as a condition that is more or less stationary in nature, whereas a developmental disease is defined as a condition capable of improving or deteriorating. a. If the Veteran's acquired psychiatric disorder to include a speech impediment is a developmental defect, provide an opinion as to whether it is as least as likely as not (roughly a 50 percent or greater probability) that he suffered an in-service superimposed disease or injury upon such defect that has resulted in any current additional disability? b. If the Veteran's acquired psychiatric disorder to include a speech impediment is a developmental disease or otherwise not a developmental defect, provide a medical opinion as to whether it is at least as likely as not (roughly a 50 percent or greater probability) that the disease was aggravated beyond its natural progression during a period of active service. Note 2: A preexisting disease will be considered to have been aggravated by active service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. Note 3: All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. After the above is completed, to include any other development deemed necessary, readjudicate the Veteran's claim. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Law Clerk, Tyler R. Masters 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.