Citation Nr: 23009366 Decision Date: 02/14/23 Archive Date: 02/14/23 DOCKET NO. 18-04 034 DATE: February 14, 2023 REMANDED Entitlement to service connection for an acquired psychiatric disorder (to include posttraumatic stress disorder (PTSD) and insomnia), to include as secondary to the Veteran's service-connected disabilities, is remanded. REASONS FOR REMAND The Veteran honorably served in the United States Marine Corps from April 1986 to February 1990 and from February 1991 to March 1991. This appeal is before the Board of Veterans' Appeals (Board) on appeal from a January 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) denying service connection for PTSD. This claim was previously before the Board in July 2021 when it was remanded. After a thorough review of the file, the Board finds that an additional remand is warranted to fully develop and evaluate the Veteran's claim. The Board notes that the scope of a Veteran's claim may include any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As further discussed below, the Board has accordingly characterized the Veteran's claim as entitlement to service connection for an acquired psychiatric disorder (to include PTSD), to include as secondary to the Veteran's service-connected disabilities, as shown on the title page above. The Veteran's claim for entitlement to service connection for an acquired psychiatric disorder (to include PTSD and insomnia), to include as secondary to the Veteran's service-connected disabilities, is remanded. The Veteran contends that he is entitled to service connection for PTSD arising from his active-duty service. After consideration of the Board's previous remand and a thorough review of the evidence of record, the Board finds that an additional remand is necessary to fully develop and evaluate the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder (to include PTSD), to include as secondary to his service-connected disabilities. Notations in the Veteran's medical treatment records indicate the Veteran is experiencing the symptoms of depression, anxiety, and PTSD. The Board notes an April 2003 private neurology evaluation documenting the Veteran's flashbacks from his service and reports in December 2015 and November 2016 that his PTSD nightmares cause frequent awakenings. The Veteran was diagnosed with persistent insomnia in January 2016 and insomnia disorder in November 2016. The Veteran also reports that his chronic pain causes him depression and anxiety. Accordingly, as previously noted, the Board has expanded the Veteran's claim for entitlement to service connection for PTSD to include an acquired psychiatric disorder, and to include an acquired psychiatric disorder as secondary to his service-connected disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Additionally, VA's duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. Under 38 U.S.C. § 5103A(d)(2), VA must provide a medical examination and, or, obtain a medical opinion, when there is: (1) competent evidence that the Veteran has a current disability (or persistent or recurrent symptoms of a disability); (2) evidence establishing that he suffered an event, injury or disease in service or has a disease or symptoms of a disease within a specified presumptive period; (3) an indication the current disability or symptoms may be associated with service; and (4) there is insufficient medical evidence to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances under which a VA examination is required). The third element, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. Id. at 83. Here, the Veteran has two insomnia-related diagnoses, reports flashbacks from his service, indicates that his PTSD nightmares cause frequent awakenings, and that his chronic pain causes him depression and anxiety. A medical opinion evaluating the nexus between the Veteran's acquired psychiatric disorder(s), the Veteran's active-duty service, and his service-connected disabilities is absent. An examination opining as to the nexus between the Veteran's claimed disabilities, his active-duty service, and his service-connected disabilities is essential to the Board's analysis. As there is evidence of record to indicate that the Veteran's claimed disability may be associated with his service or service-connected disabilities, and the record is incomplete for adjudication purposes, a remand for an examination and opinion is warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Allen v. Brown, 7 Vet. App. 439 (1995); El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit additional evidence to (1) corroborate his reported stressor(s) for his PTSD and (2) supplement his claim for an acquired psychiatric disorder(s). Should any additional information or evidence become of record, take all necessary and required steps to verify the Veteran's asserted stressor(s). All efforts should be of record. 2. Obtain any ongoing and outstanding VA and/or private treatment records. Associate such with the Veteran's claims file. Should there be any ongoing and outstanding private treatment records, contact the Veteran and request that he submit or authorize the release of such private treatment records. If a completed authorization form is provided, attempt to obtain the identified records. If the records cannot be located or do not exist, the Veteran should be notified and given an opportunity to provide them. 3. Thereafter, forward the Veteran's claims file to an appropriate examiner for an examination to identify and clarify the nature and etiology of the Veteran's acquired psychiatric disorders, to include as secondary to his service-connected disabilities. The entire claims file, including a copy of this Remand, should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultations should be accomplished, and all clinical findings should be reported in detail. The examiner must note and consider the history of the Veteran's symptoms and disabilities as provided by the Veteran at the examination. The examiner is asked to provide a response to the following: a.) Identify any and all of the Veteran's acquired psychiatric disorders, to include whether the Veteran has a current diagnosis of insomnia, anxiety, depression, and/or PTSD (in accordance with the DSM-5 criteria for PTSD). The examiner is directed to reconcile his findings with any of record, to include the January 2016 and November 2016 diagnoses of insomnia and persistent insomnia. b.) If and only if PTSD is diagnosed and there is a verified stressor, the examiner must identify 1.) the stressor(s) supporting the diagnosis of PTSD; and 2.) provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that PTSD is related to the stressor(s). The examiner is directed to consider (1) the April 2003 private neurology evaluation documenting the Veteran's flashbacks from service; (2) the Veteran's medical treatment records noting reports in December 2015 and November 2016 that his nightmares cause frequent awakenings; and (3) the history of the Veteran's symptoms and disabilities as provided by the Veteran at the examination. c.) For each identified acquired psychiatric disorder noted in (a.), is it at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher), that the Veteran's diagnosis was incurred in or are otherwise related to the Veteran's active-duty service? The examiner is directed to consider (1) the April 2003 private neurology evaluation documenting the Veteran's flashbacks from service; (2) the Veteran's medical treatment records noting reports in December 2015 and November 2016 that his nightmares cause frequent awakenings; and (3) the history of the Veteran's symptoms and disabilities as provided by the Veteran at the examination. d.) For each identified acquired psychiatric disorder noted in (a.), please indicate whether any of the Veteran's acquired psychiatric disorders are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) caused by or proximately due to the Veteran's service-connected disabilities. The examiner is directed to consider (1) the Veteran's medical treatment records noting depression and anxiety as a result of his chronic pain; and (2) the history of the Veteran's symptoms and disabilities as provided by the Veteran at the examination. e.) For each identified acquired psychiatric disorder noted in (a.), please indicate whether any of the Veteran's acquired psychiatric disorders are at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) aggravated (meaning worsened beyond its natural progression) by the Veteran's service-connected disabilities. The examiner is directed to consider (1) the Veteran's medical treatment records noting depression and anxiety as a result of his chronic pain; and (2) the history of the Veteran's symptoms and disabilities as provided by the Veteran at the examination. The examiner is reminded that the phrase "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. Additionally, secondary service connection is warranted for any incremental increase in disability, meaning any additional impairment of earning capacity above the degree of disability existing before the increase, in a nonservice-connected disability resulting from a service-connected disability, regardless of its permanence. See Ward v. Wilkie, 31 Vet. App. 233 (2019). The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). The Board also notes that the absence of documented treatment, in and of itself, is not a basis for discrediting the Veteran's lay statements of continuity. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The examiner is asked to explain the reasons behind any opinions expressed and conclusions rendered. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion cannot be provided without resort to speculation, together with a statement as to whether there is additional evidence that might enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). J. JACK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buntin, M.E. 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.