Citation Nr: 18141277 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-23 123 DATE: October 10, 2018 REMANDED The claim of entitlement to service connection for an acquired psychiatric disorder, to include anxiety disorder, social anxiety disorder, and depressive disorder, is remanded. Preliminary Matters The Veteran had honorable active duty service with the United States Army from August 1984 to February 1988. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims (Court) held that the scope of a mental health disability claim includes any mental disorder that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and other information of record. In consideration of this holding, the Board of Veterans’ Appeals (Board) has recharacterized the claim as reflected on the title page. Generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C. §5108; 38 C.F.R. § 3.156(a). However, when the Department of Veterans Affairs (VA) receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). In this case, the last prior denial of the claim for service connection for an acquired psychiatric disorder was issued by the local Regional Office (RO) in a January 2012 rating decision. At the time of the January 2012 rating decision, all of the Veteran’s service treatment records and military personnel records were not associated with the claims file. After a review of the evidence, the Board finds that relevant service treatment records have been added to the record since the last prior final decision. Specifically, these records show that the Veteran complained of difficulty with breathing and tightness in his chest in May 1985. At that time, he reported that he sought treatment at the emergency room where he was advised by the treating physician that he was hyperventilating. As such, the Board will reconsider the claim of service connection for an acquired psychiatric disorder on a de novo basis, without the need for new and material evidence. REASONS FOR REMAND Although further delay is regrettable, the Board finds that a remand is necessary in this case to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran has consistently and unvaryingly asserted that he is entitled to service connection for an acquired psychiatric disorder, as he believes that this disability had its onset in service. As noted above, service treatment records show that the Veteran sought treatment for difficulty with breathing and tightness in his chest in May 1985. At that time, he reported that he sought medical care at the emergency room where he was told by the treating physician that he was hyperventilating. Post-service VA treatment records show that the Veteran has sought continuous treatment for anxiety. An October 2011 VA treatment record shows that the Veteran reported having problems with anxiety. He indicated that he had panic attacks during service when he was in Germany. He further indicated that at that time, he sought medical treatment. He was initially told that he was having a heart attack; however, it was later determined that he was having a panic attack. A subsequent October 2011 VA treatment record shows that the Veteran reported that he was suffering from anxiety and depression. He indicated that he experienced racing thoughts, a pounding heart, chest tightness, tingling in the hands, and a feeling like he was going to be immobilized or lose control. He reported that these symptoms started while he was in Germany in approximately 1984 where he had his first panic attack. Again, the Veteran reported that he was briefly hospitalized in an emergency room at a medical facility in Germany. As noted in the October 2011 VA treatment record, the Veteran was diagnosed with anxiety disorder, not otherwise specified (NOS), rule out agoraphobia. The criteria under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) was applied in providing the diagnosis. VA implemented DSM-5, effective August 4, 2014, and the VA Secretary determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. 79 Fed. Reg. 45,093, 45, (Aug. 4. 2014). The RO certified the Veteran’s appeal to the Board in May 2016 ; hence; DSM-5 is for application in this claim. VA treatment records dated November 2011 and December 2011 show that the Veteran was diagnosed with anxiety disorder NOS and social anxiety. The records do not specify as to whether the DSM-IV or DSM-5 criteria were applied. VA treatment records dated from February 2013 through December 2014 show diagnoses of social anxiety and depressive disorder. Again, the records do not specify as to whether the DSM-IV or DSM-5 criteria were applied. Based on the foregoing, the Veteran contends that he was hospitalized during active service for his claimed acquired psychiatric condition. He specifically indicates that he was hospitalized in Germany. The Veteran’s personnel records are not contained in the claims file, and it is unclear if the Veteran had any service in Germany. The Board finds that further development is necessary in order to verify the Veteran’s service locations. If it is verified that the Veteran served in Germany, further action should be taken in locating the in-patient service treatment records, as repeatedly referenced by the Veteran in post-service VA records. Review of the Veteran’s claims file indicates that these in-patient service treatment records have not been obtained. The Board is aware that typically, in-patient treatment records are archived separate and apart from service treatment records. To date, there has been no attempt to determine whether the reported in-patient records of hospitalization exist. Therefore, upon remand, if service in Germany is verified, action should be taken to request and associate with the file any service hospital records concerning the Veteran during his period of service in the verified location. Additionally, the record reflects that the Veteran has never been afforded a VA examination for his claimed acquired psychiatric disorder. VA must provide a VA medical examination or obtain a nexus opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran’s service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). As the foregoing evidence shows that the Veteran has been diagnosed with various psychiatric disorders, the Board finds that a remand is necessary to allow the Agency of Original Jurisdiction (AOJ) to schedule a VA psychiatric examination in order to clarify the Veteran’s psychiatric diagnoses and evaluate him under the DSM-5 criteria. After examining the Veteran, the examiner should provide an opinion as to whether any diagnosed psychiatric disorder is related to the Veteran’s active service. On remand, the AOJ should make appropriate efforts to ensure that all pertinent private treatment records and any updated VA records are associated with the claims file. The matter is REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records that are not already associated with the claims file. If any record identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 2. Undertake all necessary actions to attempt to verify whether the Veteran served in Germany. All efforts to obtain these records must be documented in the file. Such efforts shall continue until the records are obtained or it is reasonably certain that they do not exist or that further efforts to obtain them would be futile. If unable to obtain any identified records, take action in accordance with 38 C.F.R. § 3.159(e). 3. If it is verified that the Veteran served in Germany, take all appropriate action to obtain records of any in-patient hospitalization during service in Germany. If these records identified cannot be obtained, the Veteran and his representative should be notified of this in writing, to include all efforts taken by VA to attempt to obtain any such record. The Veteran should also be offered the option to provide any such record himself. 4. After completing the above development, schedule the Veteran for an examination before an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. For any diagnosed psychiatric disorder, the examiner must opine as to whether it is at least as likely as not that each disorder was incurred in, was caused by, or is otherwise etiologically related to the Veteran’s military service. The examiner is advised that the Veteran should be evaluated under the DSM-5 criteria. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 5. After completing all indicated development, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Y. MacDonald, Associate Counsel