ATRIAL FIBRILLATION OR ATRIAL FLUTTER

Summary

The Veteran, a U.S. Army Reserve member with active duty for training (ADT) from October 1990 to March 1991, appeals the denial of service connection for chest pain, including atrial fibrillation, and the denial of an increased rating for left ankle strain. The Board denied service connection for chest pain and atrial fibrillation, finding that the evidence did not establish onset during service or an etiological link. While service treatment records noted chest pain assessed as musculoskeletal and normal cardiac tests, the Veteran's later diagnosis of atrial fibrillation was not linked to these in-service symptoms. The Board found the Veteran's testimony of continued chest pain since service less credible due to inconsistencies with medical records. For the left ankle strain, service connection was granted with a 10% rating. The Board denied an increased rating, finding the Veteran's testimony of locking, freezing, and instability was not credible and inconsistent with contemporaneous medical evidence and the VA examination findings during the relevant period. The claim for an acquired psychiatric disorder, including depression and PTSD, was remanded due to a duty to assist error. The VA examiner's opinion did not address the Veteran's contention that a miscarriage during service caused a mental disorder. The Board also noted the Veteran raised MST and PTSD post-hearing, but found the submitted opinion inadequate as it lacked a verified stressor, and the AOJ had no duty to develop the MST claim initially as it was not raised in the fully developed claim. The matter is remanded for an addendum opinion addressing the psychiatric disorder in relation to the miscarriage and in-service symptoms.

Rationale

No diagnosis of atrial fibrillation during service.; Chest pain in service assessed as musculoskeletal; cardiac testing normal.; Veteran's testimony of continued chest pain since service found less credible due to inconsistencies with medical records.; More persuasive evidence weighs against claim.

Full Decision Text

Citation Nr: A26027771
Decision Date: 03/26/26	Archive Date: 03/26/26

DOCKET NO. 200814-92786
DATE: March 26, 2026

ORDER

Entitlement to service connection for chest pain, to include atrial fibrillation, is denied.

An initial rating in excess of 10 percent for left ankle strain is denied.

REMANDED

Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, is remanded.

FINDINGS OF FACT

1. The persuasive evidence of record weigh against finding that the Veteran's atrial fibrillation had onset during service, or is otherwise related to an in-service injury or disease.

2. The Veteran's left ankle strain was not more nearly manifested by marked limitation of ankle motion. 

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for chest pain, to include atrial fibrillation, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. The criteria for an initial rating in excess of 10 percent for left ankle strain have not been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.41, 4.71a, Diagnostic Code (DC) 5271.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran was a member of the U.S. Army Reserve with a period of active duty for training (ADT) for initial entry training from October 1990 to March 1991. The Veteran is service connected for left ankle strain, degenerative arthritis of the lumbar spine, and radiculopathy of the lower left and lower right extremities, which confers veteran status for the October 1990 to March 1991 period of training during which the service connected disabilities were incurred. See Rating Decision - Narrative (May 2020) & Deferred Rating (May 2020), see also Hill v. McDonald, 28 Vet. App. 243 (2016).

The rating decisions on appeal were issued on May 8, 2020, and June 3, 2020, and constitute initial decisions; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the August 2020 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 14, 2024. A hearing transcript is associated with the claims file. 

Therefore, the Board may only consider the evidence of record at the time of the May 8, 2020, agency of original jurisdiction (AOJ) decision on appeal with respect to the claims of entitlement to service connection for chest pain, and for a rating in excess of 10 percent for left ankle strain and the evidence of record at the time of the June 3, 2020 AOJ decision on appeal with respect to the claim of entitlement to service connection for an acquired psychiatric disability as well as any evidence submitted by the Veteran, or the Veteran's representative, at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to service connection for an acquired psychiatric disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that the AOJ adjudicated the issue on appeal as entitlement to service connection for depression in the June 2023 rating decision on appeal.
 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to service connection for an acquired psychiatric disorder, any evidence the Board could not consider will be considered by the AOJ in the adjudication of that claim. 38 C.F.R. § 3.103(c)(2)(ii).

The Board notes that the AOJ adjudicated the issue on appeal as entitlement to service connection for depression in the June 2023 rating decision on appeal. The claim, however, includes all psychiatric disabilities. Although a Veteran may identify a particular disorder when he or she files a claim, the scope of the claim cannot be limited only to the disorder stated, but must be considered a claim for any disorder that may reasonably be encompassed by several factors including the description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). As such, by addressing the claim for an acquired psychiatric disability here, the Board is addressing any other identified psychiatric disability to include depression and PTSD.

Service Connection

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R.      § 3.303(a). Establishing service connection generally requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a), (d).

1. Entitlement to service connection for chest pain, to include atrial fibrillation.

The Veteran contends that her current atrial fibrillation initially manifested during her period of ADT from October 1990 to March 1991, which was later converted to active service, with symptoms of chest pain. See VA Form 21-526EZ (December 2019). She also testified at the hearing that her chest pain began during her period of ADT and that she had continuous symptoms since. See Hearing Transcript (February 2024). 

The May 2020 rating decision on appeal found that the Veteran had a current diagnosis of atrial fibrillation and that January 1991 service treatment records (STRs) show complaints of chest pain. See Hearing Transcript (May 2020). These are favorable findings by the AOJ. 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).

The Board concludes that the criteria for entitlement to service connection for chest pain, to include atrial fibrillation, have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303.

Turning to the facts, a January 25, 1991, Emergency Care and Treatment record reflects that the Veteran presented with chest pain, which was assessed as musculoskeletal. See Medical Treatment Record (MTR) - Government Facility (GF) (December 2019). A January 27, 1991, Emergency Care and Treatment record reflects that the Veteran had been seen multiple times for chest wall pain, and that her ECG and ACG were negative. See id. A January 28, 1991, STR reflects complaints of chest tightness and pain; the Veteran was assessed as having an upper respiratory infection (URI) with laryngitis and social problems. See id. A February 1991 STR reflects that the Veteran complained of left-side chest pain for the previous week and was assessed as having an URI with the provider noting to rule out bronchitis. See id. A February 1991 Radiologic Consultation Report reflects that the Veteran had a normal chest x-ray with no abnormalities and a normal cardiac silhouette. See id. 

An October 2019 private treatment record reflects that the Veteran's right atrial cavity was
 and that her ECG and ACG were negative. See id. A January 28, 1991, STR reflects complaints of chest tightness and pain; the Veteran was assessed as having an upper respiratory infection (URI) with laryngitis and social problems. See id. A February 1991 STR reflects that the Veteran complained of left-side chest pain for the previous week and was assessed as having an URI with the provider noting to rule out bronchitis. See id. A February 1991 Radiologic Consultation Report reflects that the Veteran had a normal chest x-ray with no abnormalities and a normal cardiac silhouette. See id. 

An October 2019 private treatment record reflects that the Veteran's right atrial cavity was dilated. See MTR - Non-Government Facility (NGF) (January 2020). 

In December 2019, VA received the Veteran's VA Form 21-526EZ claim for service connection for chest pains developed during her period of active service. See VA Form 21-526EZ (December 2019). 

An April 2020 VA obtained Heart Conditions Disability Benefits Questionnaire (DBQ) reflects that the Veteran was diagnosed with atrial fibrillation in 2019. See C&P Exam (April 2020). By history, the Veteran reported that she started having fluttering heart beats and was admitted to the hospital and put on medication. See id. An April 2020 VA obtained medical opinion reflects the conclusion that the Veteran's chest pain was not incurred in or caused by service. See C&P Exam (April 2020). The rationale was that:

The chest pain in service was muscular not cardiac. Per [the] veteran [she] started having fluttering heart beats and [was] admitted to hospital and put on medication. Per the STR's the veteran was seen four times in service with chest pain and noted chest xray and ekg normal. The Veteran has abnormal heart rhythm atrial fibrillation after service not related to chest pain in service and is on medication. The veteran is seen by a cardiologist. The cardiac condition now is after service. Therefore, it is less likely than ot that the current heart condition was incurred in service or caused by chest pain in service. 

Having carefully considered the lay and medical evidence, the more persuasive evidence of record weighs against finding that the Veteran's chest pains, to include atrial fibrillation, had onset during her period of active service, or is otherwise etiologically related to an injury or disease during active service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 

First, there is not competent evidence showing that the Veteran had atrial fibrillation during her period of active service, or that her symptoms of chest pain during her period of active service are attributable to atrial fibrillation diagnosed more than 15 years after her separation from service. Here, the January 1991 and February 1991 STRs reflect no diagnosis of atrial fibrillation. See MTR-GF (December 2019). The January 1991 and February 1991 STRs reflect that the Veteran's chest pain was assessed as musculoskeletal, that she was diagnosed with an URI, and that cardiology testing and imaging was normal. See id. While the Veteran is competent to report symptoms of chest pain, she is not competent to diagnose herself with atrial fibrillation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, her medical opinion has no persuasive or probative value. 

Second, to the extent that the Veteran contends she has had continued chest pain since service, the Board finds that this is less than credible as it is inconsistent with other evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, and inconsistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The April 2020 Heart Conditions DBQ reflects that the Veteran's atrial fibrillation was diagnosed after the Veteran experienced a fluttering heartbeat. See C&P Exam (April 2020). The history, as provided by the Veteran, did not include a discussion of continued chest pain, or symptoms since service, but instead references a new symptom that led her to seek care and diagnosis. See id.

On balance, the more persuasive evidence weighs against the claim for service connection for chest pain, to include atrial fibrillation.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt
78 F.3d 604 (Fed. Cir. 1996). The April 2020 Heart Conditions DBQ reflects that the Veteran's atrial fibrillation was diagnosed after the Veteran experienced a fluttering heartbeat. See C&P Exam (April 2020). The history, as provided by the Veteran, did not include a discussion of continued chest pain, or symptoms since service, but instead references a new symptom that led her to seek care and diagnosis. See id.

On balance, the more persuasive evidence weighs against the claim for service connection for chest pain, to include atrial fibrillation.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C.                § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155;    38 C.F.R. § 4.1, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider a veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where an appeal is based on an initial rating for a disability, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id.; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 

2. Entitlement to an initial rating in excess of 10 percent for left ankle strain

A May 2020 rating decision granted service connection for the Veteran's left ankle strain and assigned an initial 10 percent rating effective May 17, 2019, pursuant to 38 C.F.R. § 4.71a, DC 5271. See Rating Decision (May 2020). This appeal arises from the Veteran's disagreement with the initial rating assigned. See VA Form 10182 (August 2020). 

The rating review period for this claim begins on May 17, 2019 - the date of the grant of service connection (the date VA received the Veteran's intent to file a claim) and ends on May 8, 2020 - the date of the rating decision on appeal. 

The Board concludes that the criteria for a rating in excess of 10 percent for left ankle strain are not met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.41, 4.71a,
August 2020). 

The rating review period for this claim begins on May 17, 2019 - the date of the grant of service connection (the date VA received the Veteran's intent to file a claim) and ends on May 8, 2020 - the date of the rating decision on appeal. 

The Board concludes that the criteria for a rating in excess of 10 percent for left ankle strain are not met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.41, 4.71a, Diagnostic Code (DC) 5271.

Limited motion of the ankle is contemplated by 38 C.F.R. § 4.71a, DC 5271.  

Under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.)  A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.).

The Board notes that VA revised the rating criteria for evaluating ankle disorders, effective February 7, 2021.  See 85 Fed. Reg. 230 (Nov. 30, 2020, as corrected). The changes to DC 5271 essentially defined "moderate" and "marked" in terms of range of motion.  However, because the Veteran's claim was adjudicated prior to the amended criteria, the Board will apply pre-amended criteria.

Under the version of the diagnostic code in effect prior to February 7, 2021, marked and moderate were undefined.  The terms "marked" and "moderate" were not otherwise defined in the VA rating schedule.  VA's Adjudication Procedure Manual (M21-1), however, then provided guidance that "moderate" limitation of ankle motion under DC 5271 is present where there is less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion, and that "marked" limitation of motion under DC 5271 is demonstrated where there is less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion.  Although the Board is not bound by the M21-1, the Board finds the M21-1 parameters of "moderate" and "marked" limitation of motion of the ankle relevant in its analysis of the proper rating assigned under DC 5271 prior to the implementation of the new rating criteria effective February 7, 2021.  Moreover, the Board notes that the amendments to DC 5271 simply codified the standards that were already being applied by VBA with respect to ankle limitation of motion. Under the amended version of DC 5271, moderate was defined to mean less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and marked was defined to mean less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.

Normal range of motion of the ankle is 20 degrees of dorsiflexion and 45 degrees of plantar flexion.  38C.F.R. §4.71a, Plate II.  Ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure.  Lewis v. Derwinski, 3 Vet. App. 259 (1992).

The Board finds that the persuasive evidence weighs against finding that the Veteran's left ankle strain was manifested by marked limitation of ankle motion. 

The evidence of record does not show that the Veteran had plantar flexion less than 10 degrees or dorsiflexion less than 5 degrees even considering pain and weightbearing. An April 2020 VA obtained Ankle Conditions DBQ reflects a diagnosis for bilateral ankle strain and that the Veteran denied left ankle flare ups but instead chronic pain all the time. Range of motion (ROM) of the left ankle showed plantar flexion from 0 to 25 degrees and dorsiflexion from 0 to 35 degrees. While the examiner noted the inability to test ROM on repetitive use due to pain, the DBQ reflects that examination was being conducted after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability. The April 2020 DBQ also reflects that the Veteran's left ankle was not unstable, no ankylosis was present, that strength testing revealed 4/5 (active movement against some resistance) and that she did not use any assistive devices. 

The Veteran
 ups but instead chronic pain all the time. Range of motion (ROM) of the left ankle showed plantar flexion from 0 to 25 degrees and dorsiflexion from 0 to 35 degrees. While the examiner noted the inability to test ROM on repetitive use due to pain, the DBQ reflects that examination was being conducted after repetitive use over time and that pain, weakness, fatigability or incoordination did not significantly limit functional ability. The April 2020 DBQ also reflects that the Veteran's left ankle was not unstable, no ankylosis was present, that strength testing revealed 4/5 (active movement against some resistance) and that she did not use any assistive devices. 

The Veteran testified at her February 2024 hearing that, during the relevant rating period, her left ankle locked or "froze" for a minute or two periodically throughout the day. See Hearing Transcript (February 2024). She further testified that she worked as a medical assistant and was on her feet a lot. See id. The Veteran also reported occasional locking and instability that prevented weight bearing. See VA 21-4138 (December 2019). 

The Board finds that the Veteran's February 2024 testimony as to symptoms of locking and freezing, as well as her report of instability, is less than credible as it is inconsistent with medical evidence contemporaneous with the rating review period. See Caluza, 7 Vet. App. at 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Incongruent with these lay reports, the April 2020 Ankle Conditions DBQ reflects complaints of pain, but not locking or instability, along with objective findings for no joint instability; and the private treatment records submitted by the Veteran do not reflect any treatment of the ankle to include any indication of symptoms of locking/freezing or instability of the joint. See MTR-NGF (January 2020). Further, it defies belief that such symptoms would not have been reported at the time of the Veteran's ankle examination scheduled in connection with evaluation of the severity of her disability-this is particular so given that symptoms of periodic freezing or locking of the ankle throughout the day would have impacted her profession that required significant time on the feet. Therefore, the Veteran's report of these symptoms have no persuasive value in rating the disability during the relevant rating review period here.

Additionally, there is neither credible lay evidence nor medical evidence supporting ankylosis or functional ankylosis of the left ankle. The April 2020 Ankle Conditions DBQ shows that evaluation revealed no ankylosis. While the April 2020 Ankle Conditions DBQ shows that Veteran reported she had "difficulty walking and standing, unable to clean house, unable to cook, [and] pain interrupts sleep," her May 2020 Mental Disorders DBQ shows that she currently works at a medical assistant, noting she "[s]witched from working with a doctor (constantly on feet and back was getting worse)," and she found it hard to be active "due to back and knee pain"-there was no mention of any left ankle pain or functional loss associated with left ankle. The April 2020 Ankle Conditions DBQ shows left ankle range of motion limited by pain on weight bearing to 35 degrees on dorsiflexion and 25 on plantar flexion. She denied use of any assistive device as a normal mode of locomotion.

The Board considered separate ratings under all potentially applicable DCs.  Additionally, as the evidence does not show ankylosis, as explained in detail above, or subastragalar or tarsal joint ankylosis, DC 5272 does not apply.  DCs 5273 and 5274 also do not apply, as the evidence does not show calcis or astragalus malunion, or astragalectomy.  Likewise, there is insufficient evidence of functional immobility of the left ankle constituting functional ankylosis.  See Chavis v. McDonough, 34 Vet. App. 1 (2021).

After considering the evidence of record, the Board finds that the clinical findings throughout the relevant rating review period, do not more nearly approximate marked limitation of motion.

Therefore, the claim for a higher initial rating is denied. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

3. Entitlement to service connection for an acquired psychiatric
1 (2021).

After considering the evidence of record, the Board finds that the clinical findings throughout the relevant rating review period, do not more nearly approximate marked limitation of motion.

Therefore, the claim for a higher initial rating is denied. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

REASONS FOR REMAND

3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and posttraumatic stress disorder (PTSD) is remanded.

The Veteran contends that her current acquired psychiatric disorder is the result of a miscarriage during service. See VA Form 21-526EZ (December 2019). 

By way of background, the record shows that the Veteran was a member of the U.S. Army Reserve from May1990 to October 1998 with a period of active duty for training (ADT) for initial entry training from October 1990 to March 1991; she has established veteran status for that period of ADT. A November 1989 ROMH for Reserve enlistment reflects a history of having, or having had, depression or excessive worry, and that she had a suicide attempt at age 15. Prior to entering ADT, a November 1989 Consultation Sheet of a pre-enlistment psychiatric evaluation reflects the Veteran had "fully recovered," from her prior mental health problems, that her prognosis was "excellent," and that her previous suicidal drive was "now resolved." See MTR-GF (December 2019). 

Reserve record shows history of miscarriage on October 31, 1990. Reserve medical records shows that the Veteran had a dilation and evacuation (D&C) procedure on November 1, 1990-the preoperative diagnosis was incomplete abortion. Reserve records include a note under "Temporary (Minor) Problems of "URI, laryngitis/Social & mental Health probs" dated January 1991-without further detail. Id. 30. A January 1991 Reserve medical record shows that the Veteran reported a desire to be separated noting various symptoms that included depression; she denied suicidal ideation and hallucinations, but endorsed depressed mood-which was diagnosed as adjustment disorder with physical complaints. A February 1991 Reserve medical record shows "probs - seen in Mental Health."  Reserve records include a note dated July 1991 from a civilian clinician indicating that the Veteran was pregnant, 7 weeks gestation. A note dated October 1991 noted she was 20 weeks pregnant. 

The Reserve STRs have been certified as complete, and that no further records exist, despite a lack of STRs after the Veteran's initial period of active service from October 1990 to March 1991. See STR - Reserve STR (May 2020). 

In December 2019, VA received the Veterans, VA Form 21-526EZ, Fully Developed Claim (Compensation), application that included a claim  for depression "due to miscarriage" that occurred "while on active duty." She submitted a statement in support of that claim of mental disorder related to miscarriage. See VA 21-42138 (December 2019).

The June 2020 rating decision denied the claim, but made the favorable finding that the Veteran had a current diagnosis of unspecified depressive disorder. See 38 U.S.C. § 5104A; 38 C.F.R. § 3.104(c).

The issue of entitlement to service connection for an acquired psychiatric disorder is remanded to correct a duty to assist error that occurred prior to the June 2020 decision on appeal.

VA's duty to assist claimants in the development of their claims includes obtaining an examination and/or opinion when necessary to decide the claim. 38 U.S.C.         § 5103A(d); 38 C.F.R. § 3.159(c)(4). Further, once an examination or opinion is obtained, VA must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate).

Here, a May 2020 VA obtained medical opinion reflects the conclusion that it is less likely than not that the Veteran's unspecified depressive disorder was incurred in or caused by the Veteran's service. See C&P Exam (May 2020). The rationale was that: 

The Veteran reported symptoms of Unspecified Depressive Disorder. Veteran submitted Form 21-0781 noting medical issues
. § 3.159(c)(4). Further, once an examination or opinion is obtained, VA must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate).

Here, a May 2020 VA obtained medical opinion reflects the conclusion that it is less likely than not that the Veteran's unspecified depressive disorder was incurred in or caused by the Veteran's service. See C&P Exam (May 2020). The rationale was that: 

The Veteran reported symptoms of Unspecified Depressive Disorder. Veteran submitted Form 21-0781 noting medical issues and problems with depression. Veteran's entrance exam notes issues with depression. Although the Veteran reported depression was resolved after she confronted her childhood abuser around 1993 there is no evidence of this in the records. Further, records are silent for any concerns with depression of mental health diagnoses. Therefore, the current diagnosis is not at least as likely as not due to depression in service. 

The Board finds the opinion is inadequate for adjudicative purposes as it does not address the Veteran's contention that she had mental disorder related to miscarriage during a period of ADT qualifying as active service. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). Here, the STR's reflect that the Veteran had a miscarriage in October 1991; a January 1991 Consultation Sheet reflects complaint of depression; and there is a current diagnosis for depression. The opinion does not address this evidence nor the Veteran's contention.  The AOJ had a duty to obtain an addendum opinion prior to issuing the rating decision on appeal.

Accordingly, remand is necessary to correct this duty to assist error on the part of the originating agency in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the decision on appeal. See 38 C.F.R. § 20.802.

In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. 

It is noted that after the rating decision on appeal that the Veteran raised military sexual trauma (MST) and post-traumatic stress disorder at her Board hearing in February 2024, the following the hearing submitted a medical opinion supporting her new claim for PTSD due to MST along with buddy statement. Service connection for PTSD requires: (1) Medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. Lay testimony alone is not sufficient to establish the incurrence of a PTSD related stressor for VA purposes. 38 C.F.R. § 3.304(f).

The history is relevant here. The record does not show any report of MST at the time the Veteran filed her December 2019 VA Form 21-526EZ FDC. Also, the Veteran did not report MST during her VA mental disorders examination conducted in connection with her claim VA compensation based on mental disability. Allegations of MST are first raised in a May 2020 VA treatment note showing that the Veteran requested referral to the mental health clinic for a history of miscarriage and MST-no details were given as to the MST such as date and location. See CAPRI (June 2020).

As an initial matter, the Board finds that the favorable medical opinion dated March 2024 is inadequate to grant the claim for a mental disorder. A March 2024 PTSD DBQ and medical opinion that essentially diagnoses the Veteran with PTSD as due to MST (personal assault). See MTR-NGF (May 2024). The clinician states:

The patient's narrative reveals a history of profound trauma and adversity endured during her military service, including experiences of Military Sexual Assault (MSA). The traumatic loss of a child during basic training, and mistreatment due to her reservist status. These traumatic events, coupled with emotional abuse, sexual assault, and the loss of her child, likely contribute significantly to her subsequent development of major depressive disorder and post-traumatic stress disorder (PTSD).

The Board finds the opinion inadequate to decide the claim there is no verified stressor event to support the diagnosis of PTSD. See generally, 38 C.F.R. § 3.304(f). Also, the rationale for a link between miscarriage and any other mental disorder is simply not discernible. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two,"
 (MSA). The traumatic loss of a child during basic training, and mistreatment due to her reservist status. These traumatic events, coupled with emotional abuse, sexual assault, and the loss of her child, likely contribute significantly to her subsequent development of major depressive disorder and post-traumatic stress disorder (PTSD).

The Board finds the opinion inadequate to decide the claim there is no verified stressor event to support the diagnosis of PTSD. See generally, 38 C.F.R. § 3.304(f). Also, the rationale for a link between miscarriage and any other mental disorder is simply not discernible. A "medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two," which is absent here. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the opinion has no persuasive value for the purpose of deciding this appeal.

Additionally, the Board finds that the AOJ had no duty to develop a claim based on in-service personal assault. In December 2019, the Veteran submitted her VA Form 21-526 FDC for mental disorder described as depression due to miscarriage. Under the FDC framework, a claim is submitted in a "fully developed" status, limiting the need for further development of the claim by VA. The notice that accompanies the FDC informs the Veteran of what evidence is required to substantiate a claim and VA's respective duties for obtaining evidence. Typically, a VA Form 21-526EZ, FCD, include notice that if the claim is for PTSD, required forms include a VA Form 21-0781 or 21-0781a. In this case, the Veteran did not submit either form, did not mention or suggest MST, nor did she identify a stressor-related disorder such as  PTSD to include via any medical evidence prior to the rating decision on appeal. Although the May 2020 VA treatment note indicates that the Veteran sought referral for MST, she had not filed a claim based on in-service personal assault or submitted the required forms identified in her December 2019 VA Form 21-526EZ, FDC. Therefore, remand for development based on the report of MST and diagnosis for PTSD due to MST is not warranted pursuant to 38 C.F.R. § 20.802. The Veteran may file a new claim with the AOJ for PTSD and provide the required completed forms at that time for a mental condition based on in-service personal assault. This would then trigger certain VA duties under 38 C.F.R. § 3.304(f)(5) that relate to claims based on in-service personal assault.

The matter is REMANDED for the following actions:

Obtain an addendum opinion from an appropriate clinician regarding the Veteran's acquired psychiatric disorder. The examiner must review the claims file. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician.  The phrase "at least as likely as not" means the likelihood is at least approximately balanced or nearly equal.

Is it at least as likely as not that the Veteran's psychiatric disability: (1) had onset during the Veteran's period of service from October 1990 to March 1991; (2) is etiologically related to the Veteran an October 1990 miscarriage during a period of active service. Explain.

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?

Consider: (1) November 1990 STRs that reflect the Veteran underwent a dilation and curettage after having miscarried; (2) January 1991 STRs that reflect the Veteran complained of physical and mental symptoms including restless sleep and depression, which was assessed at the time as occupational problems after ruling out adjustment disorder, thought and personality disorders; (3) January 1991 STR reflects that the Veteran had social problems.

 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J.D.

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.