Citation Nr: A23034412 Decision Date: 12/04/23 Archive Date: 12/04/23 DOCKET NO. 231103-389698 DATE: December 4, 2023 REMANDED Entitlement to service connection for an acquired psychiatric disorder to include depression and anxiety, secondary to service-connected musculoskeletal conditions (including lumbar degenerative arthritis, right knee, and right ankle conditions) is remanded. REASONS FOR REMAND The Veteran had active service in the Army from January 1966 to January 1968. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2023 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the November 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the January 2023 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. By way of background, in an April 2012 rating decision, the agency of original jurisdiction (AOJ) denied service connection for depression and anxiety secondary to a back condition that was denied service connection in the same rating decision. The Veteran did not submit a notice of disagreement and no new and material evidence was received within one year of the April 2012 decision. As such, the denial became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). The January 2023 rating decision found that new and relevant evidence had been received to readjudicate the claim for a mental health condition to include depression and anxiety. This is a favorable finding by the AOJ and the Board will proceed to the address the claim on the merits. See 38?U.S.C. § 5104A; 38?C.F.R. § 3.104(c). The Board has expanded the issue from a mental health condition to include depression and anxiety and recharacterized the issue as an acquired psychiatric disorder to include depression and anxiety. See Clemons v. Shinseki, 23 Vet. App. 1, 3 (2009). 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran seeks service connection for anxiety and depression secondary to his service-connected musculoskeletal conditions (including lumbar degenerative arthritis, right knee, and right ankle conditions). See April 2022 VA Form 20-0995 Supplemental Claim Application and April 2022 addendum. The Board notes the Veteran, through his representative has raised the issue of adequacy of the November 2022 VA examination. For the reasons addressed below, the Board finds the 2022 VA examination is inadequate and a remand is necessary. In the November 2022 VA examination, the examiner opined that the Veteran had no mental disorder diagnosis because there are no findings, signs, or symptoms to support a diagnosis. On the contrary, the record reflects both diagnosed acquired psychiatric disorders and multiple signs or symptoms to support a diagnosis. In 1997 the Veteran's doctor stated the Veteran was in treatment for depression and anxiety and another doctor opined in 1999 that the Veteran was being treated for major depression and anxiety. See 1997 and 1999 private treatment records. The Board notes that the Veteran was prescribed medication for his depression in 1997 and 1999. The Veteran was contacted by VA Primary Care Mental Health Initiative (PCHMI) as part of an outreach program in March 2022. At a scheduled appointment, the Veteran reported trouble coping with surgeries and that he felt frustrated, stressed, and depressed. See March 2022 VA mental health intake note. As part of the assessment, (based on DSM-5 diagnostic criteria), the doctor observed chronic pain and depression accompanied by psychosocial factors of limited social support and the Veteran's limited ability to leave his home independently. Id. The doctor also indicated that the patient reported symptoms consistent with a major depressive episode. Id. For the treatment plan, the doctor summarized that the Veteran reported symptoms that may be consistent with Major Depression and Moderate to Severe Anxiety. Id. The Veteran's lay statements also documented symptoms upon which a diagnosis could be based. The Veteran reported occasional chest pains when he is having anxiety. See September 2020 VA treatment record. In the March 2022 mental health appointment, the Veteran reported feeling depressed or down nearly every day, feeling tired nearly every day and multiple other depressive symptoms more than half of the days in the last two weeks. See March 2022 VA mental health intake note. The Veteran also reported becoming easily annoyed or irritated nearly every day and feeling nervous, anxious, or on edge more than half the days in the last two weeks accompanied by additional anxiety symptoms. Id. In the November 2022 VA examination, the Veteran reported being easily startled, hyper-vigilant, and that he had panic episodes two times a week. See November 2022 VA examination. The Veteran stated panic episodes last for about 45 minutes and that he calmed himself by sitting down. Id. The Veteran reported having a quick temper, will sometimes yell, but does not damage property, and has low energy. Id. The Veteran also identified trouble sleeping and experiencing nightmares six times a month. The November 2022 VA examiner further opined that the Veteran's STRs had no mental health disorders nor treatment and therefore the claimed condition was less likely than not incurred in or caused by the claimed in-service event. The Board notes the claimed in-service event is the event that resulted in the Veteran's service-connected back disability. The examiner offered no other analysis. The Board notes that the direct service connection opinion is internally inconsistent with the examiner's statement on diagnosis and symptoms. In addition to the internal inconsistencies, the November 2022 VA opinion is also incomplete, in that the examiner did not provide an opinion for secondary service connection. The Veteran's lay statements from 2011 and through additional documentation in pursuit of this matter have consistently raised secondary service connection. See March 2011 Veteran statement, March 2011 spouse lay statement, April 2022 VA Form 20-0995. The Board concludes that the November 2022 VA examination is inadequate because the opinion is conclusory, is based on findings clearly contradicted by the record, and is incomplete as it failed to consider all raised theories of entitlement. The failure to provide an adequate examination constitutes a pre-decisional duty to assist error and remand to correct this error is warranted. See Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); 38 C.F.R. § 20.802(a). Thus, the matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriately qualified clinician, who has not previously reviewed the Veteran's claims file, to determine the nature and etiology of any diagnosed acquired psychiatric disorder. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. The examiner should provide a full description of each diagnosed disability and report all signs and symptoms necessary for evaluating the Veteran's claimed psychiatric disorder. For each identified psychiatric disorder, the examiner is asked to respond to the following inquiries: (1) Is it at least as likely as not that any diagnosed psychiatric disorder was incurred in, or otherwise related, to the Veteran's time on active service. (2) Is it at least as likely as not the any diagnosed psychiatric disorder was caused by his service-connected musculoskeletal disabilities (including lumbar degenerative arthritis, right knee, and right ankle conditions)? (3) Is it at least as likely as not the any diagnosed psychiatric disorder was aggravated by his service-connected musculoskeletal disabilities (including lumbar degenerative arthritis, right knee, and right ankle conditions)? In rendering any opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. The examiner is not to improperly discount the Veteran's lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The examiner is advised that an opinion based solely on the absence of documented treatment during service is insufficient. The complete rationale for all opinions should be set forth and include a discussion of the facts and medical principles involved. Luke Pelican Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Miller, Kimberly I. 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.