Citation Nr: A25035592 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210526-162669 DATE: April 17, 2025 REMANDED Entitlement to a disability rating in excess of 10 percent for irritable bowel syndrome (IBS) is remanded. Entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is remanded. REASONS FOR REMAND The Veteran served on active duty in the U.S. Army from September 1990 to May 1992, with additional active service. This appeal comes to the Board of Veterans' Appeals (Board) from January 12, 2021, and January 21, 2021 rating decisions by a Department of Veterans Affairs (VA) Regional Office. In the May 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the January 12, 2021 agency of original jurisdiction (AOJ) decision on appeal for an increased rating for IBS; and the evidence of record at the time of the January 21, 2021 AOJ decision on appeal for the claim for service connection; as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the respective decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. However, because the Board is remanding the claims for an increased rating and for service connection, any evidence the Board could not consider will be considered by the AOJ in the readjudication of the claims. 38 C.F.R. § 3.103(c)(2)(ii). In his November 2020 claim, the Veteran sought compensation for PTSD. However, under Clemons v. Shinseki, 23 Vet. App. 1 (2009), claims for service connection for PTSD also encompass claims for all psychiatric disabilities affecting a Veteran based on a review of the medical evidence. Here, the medical evidence indicates that the Veteran has been diagnosed with other trauma and stressor disorder, and has a medical history of anxiety and depression. See January 2021 VA Examination; April 2010 VA Treatment Record. Accordingly, the Board has broadened the Veteran's claim to include service connection for an acquired psychiatric disorder. 1. Entitlement to a disability rating in excess of 10 percent for IBS The Veteran contends that a higher rating for his IBS is warranted due to symptoms such as bloating, severe stomach pains, and severe constipation. He stated that he experiences constipation for 7 to 8 days at a time if he does not take medication. See Attachment to the May 2021 VA Form 10182. However, the Board cannot yet adjudicate the Veteran's claim because the AOJ failed to make reasonable efforts to ensure all relevant treatment records were obtained. See generally 38 C.F.R. § 20.802(a) (explaining that the Board shall remand to the AOJ for correction of a pre-decisional duty to assist error); 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Shortly prior to the 1-year lookback period, the AOJ had notice that the Veteran would be seeing a gastroenterologist. See August 2019 VA Treatment Record. According to the same record, the Veteran had a private primary care physician in Baton Rouge. Then, just a few days before the 1-year lookback period, a November 2019 VA treatment record noted that the Veteran had a future appointment with a gastroenterologist from an outside hospital. Thus, the AOJ was on notice that the Veteran had relevant treatment during the 1-year lookback period. The AOJ did not make any efforts to obtain these records. The AOJ's pre-decisional error was not rendered harmless by the Veteran's later submission of treatment records. The Veteran only submitted a single private record of treatment from Baton Rouge General Physicians during a later evidence window. See generally January 2021 Private Treatment Record. As the remainder of missing records are still not in the claims file, and the AOJ had notice of private treatment prior to the AOJ decision on appeal, remand is warranted. 2. Entitlement to service connection for an acquired psychiatric disability The Veteran contends that his acquired psychiatric disability is related to an incident that occurred while stationed in Saudi Arabia in 1990. He explained that another soldier was killed while transporting an officer to another military site. The Veteran explained that security was heightened on base as a result. The Veteran volunteered to transport another service member to the site, but he was fearful to do so. Several years later, the Veteran experienced symptoms such as memory loss, feeling withdrawn, anger, and nightmares about the military. He explained his reasons for not seeking psychiatric treatment during service or afterwards. See Attachment to the May 2021 VA Form 10182. The Veteran also contended that he has had nightmares about the pain from his right knee surgeries. See January 2021 Correspondence. The AOJ raised entitlement to service connection on a secondary basis as a result. See also January 2021 VA Examination (noting right knee osteoarthritis as a relevant diagnosis to other trauma and stressor disorder; and explaining that the Veteran's right knee disability caused a psychiatric symptom). The AOJ has favorably found that (1) the Veteran has been diagnosed with a disability based on the January 2021 diagnosis of other trauma and stressor disorder; (2) he experienced a conceded stressor based on fear of hostile military activity while stationed in Southwest Asia from October 1990 through November 1990; and (3) the primary right knee disability is service-connected. See January 21, 2021 Rating Decision. However, the Board cannot yet adjudicate the Veteran's claim because the AOJ failed to obtain medical opinions with sufficient information to decide the claim. See generally 38 C.F.R. § 20.802(a) (explaining that the Board shall remand to the AOJ for correction of a pre-decisional duty to assist error); 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see Barr v. Nicholson, 21 Vet. App. 303 (2007). In a January 2021 opinion for direct service connection, the examiner was asked to opine whether the Veteran had a diagnosis of PTSD that was at least as likely as not incurred in or caused by the Veteran's service in Southwest Asia. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner explained that the Veteran did not have a diagnosis of PTSD, but he did have a stress-related disorder of lesser severity, diagnosed as other specified trauma and stress-related disorder. The examiner stated that there was no "identifiable nexus" between the Veteran's military service and the diagnosed disorder because the Veteran did not have in-service mental health treatment or an in-service diagnosis. The examiner also based the opinion on the Veteran's consistent scores within normal limits on screening measures for PTSD and depression. In a January 2021 VA opinion addressing secondary service connection, the examiner was asked to opined whether the Veteran's other specified trauma and stressor disorder was at least as likely as not proximately due to or the result of the Veteran's service connected right knee disability. The examiner opined that the claimed condition was less likely than not proximately due to or the result of Veteran's service-connected condition. As rationale, the examiner stated that the Veteran identified his stressor as related to his military history, which did not involve the damaged knee. However, the examiner stated that the Veteran made clear that the knee injury was an ongoing source of distress, "both in terms of chronic pain and greatly diminished function." These opinions do not provide sufficient information to adjudicate the claim at this time. The direct service connection opinion only relied upon the absence of evidence to formulate a negative nexus and did not appear to consider the Veteran's January 2021 statement. See Fountain v. McDonald, 27 Vet. App. 258, 272 (2015) (stating that the Board must first establish a proper foundation for drawing inferences against a claimant from an absence of documentation); see also Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336, n. 1 (Fed. Cir. 2006) (stating that an examiner's opinion failed to consider whether lay statements presented sufficient evidence of the etiology of the Veteran's disability such that his claim could be proven without contemporaneous medical evidence). Regarding lay statements, the Veteran described nightmares about the military and his pain from the right knee surgery, among his other reported symptoms. He also provided reasoning regarding why he was not seeking treatment. See January 2021 Correspondence. Additionally, the opinion should have clarified whether the Veteran had anxiety or depression at any time during the appeal period. According to an April 2010 VA treatment record, the Veteran had a medical history of depression and anxiety. Thus, the AOJ should have ensured a medical opinion addressed this evidence. Regarding the opinion for secondary service connection, the rationale did not make sense, as the examiner provided a negative nexus, while still suggesting a relationship between the knee injury and the Veteran's psychiatric symptoms based on his lay statement. Also, the AOJ failed to ensure the secondary opinion addressed aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140-41 (2013) (stating that a secondary service connection medical opinion was inadequate because it did not discuss aggravation). Accordingly, remand is warranted for direct and secondary service connection opinions. On remand, the AOJ will readjudicate the claims for entitlement to service connection for an acquired psychiatric disability and an increased rating for IBS. In so doing, the AOJ will consider all relevant evidence of record, including the attachment to the May 2021 VA Form 10182, the January 2022 private treatment record, and subsequent VA treatment records. 38?C.F.R. §?20.802(c). The matters are REMANDED for the following action: 1. First, make reasonable efforts to obtain private treatment records for treatment the Veteran received for IBS during the appeal period. Please consider reported treatment from civilian doctors referenced in August 2019 and November 2019 VA treatment records, to include any missing treatment records by a primary care physician in Baton Rouge and a gastroenterologist. 2. Second, and only after completing the first directive, obtain a medical opinion from an appropriate VA clinician regarding the nature and etiology of the Veteran's acquired psychiatric disability. No additional examination of the Veteran is necessary unless the clinician determines otherwise. The evidentiary record, including a copy of this remand, must be provided to, and reviewed by, the clinician before rendering the opinion. The reviewing clinician must opine on: (a.) Did the Veteran have a diagnosis of anxiety or depression during any portion of the appeal period? i. Please address the April 2010 VA treatment record. (b.) Whether any diagnosed psychiatric disability is at least as likely as not related to an in-service injury, event, or disease, to include hostile military activity in Saudi Arabia in 1990. (c.) Whether any diagnosed psychiatric disability is at least as likely as not caused or aggravated by (any incremental increase in severity due to) the Veteran's service-connected right knee disability. The opinion must address aggravation. i. If the service-connected right knee disability did not cause, but aggravated, any diagnosed psychiatric disability, specify, to the extent possible, the degree of disability (pathology or impairment) that has resulted from such aggravation. The clinician should provide full explanation of the rationale for each opinion. In formulating any opinion, the reviewing clinician should also address all relevant medical and lay evidence of record, including the January 2021 correspondence and January 2021 VA examination report. The reviewing clinician is not to mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The Board reminds the clinician that the absence of in-service evidence of a medical diagnosis is not always fatal to a service connection claim, as the laws and regulations do not require in-service complaints of, or treatment for, a diagnosed condition to establish service connection. (Continued on the next page) ? If an opinion cannot be provided without resorting to speculation, the reviewing clinician must provide a complete explanation for why an opinion cannot be rendered. In so doing, the reviewing clinician must explain whether the 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 question. R. Bisignani Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Garcia, 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.